[2016] KEHC 1762 (KLR)
The High Court held that the Principal Magistrate erred in setting aside an order for substituted service that had been issued by a court of concurrent jurisdiction. The proper procedure for challenging such an order would have been by way of an application for review, which was not before the court. As a result,...
Source-derived case information.
- Citation
- [2016] KEHC 1762 (KLR)
- Parties
- Appellant: Veronicah Kanini Masalah and Veronicah Kasiku Mwengi (Suing as the Joint Administrators (Deceased)); Respondent: Erick Kigoi Irungu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 365 of 2013
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Appeal allowed. Ruling and order of 18.6.2013 set aside. Motion dated 22.8.2012 reinstated for hearing afresh.
- Judges
- JK Sergon
- Legal Topics
- Jurisdiction of Magistrate, Substituted Service, Setting Aside Ex Parte Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Veronicah Kanini Masalah and Veronicah Kasiku Mwengi (Suing as the Joint Administrators (Deceased))
Appellant
Erick Kigoi Irungu
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate had jurisdiction to set aside an order for substituted service issued by a court of concurrent jurisdiction.
- 2 Whether the order for substituted service was properly granted.
Ratio Decidendi
The High Court held that the Principal Magistrate erred in setting aside an order for substituted service that had been issued by a court of concurrent jurisdiction. The proper procedure for challenging such an order would have been by way of an application for review, which was not before the court. As a result, the ruling and order setting aside the ex parte judgment were set aside, and the motion to set aside the judgment was reinstated to be heard afresh by a different magistrate.
Court Disposition
Appeal allowed. Ruling and order of 18.6.2013 set aside. Motion dated 22.8.2012 reinstated for hearing afresh.
Orders
- The appeal is allowed.
- The ruling and order issued on 18.6.2013 are set aside.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 365 OF 2013
VERONICAH KANINI MASALAH and
VERONICAH KASIKU MWENGI (Suing as the Joint
Administrators (Deceased)................................................ APPELLANT
V E R S U S –
ERICK KIGOI IRUNGU .........................................................RESPONDENT
JUDGEMENT
1) I have considered the rival submissions over the singular issue as to whether or not the trial magistrate had jurisdiction to hear and determine the question on whether or not issuance of the order for substituted service was justified. I have taken into account the oral submissions presented by learned counsels. I have on my part re-evaluated the arguments presented before Hon. Lorot, Learned Principal Magistrate.
2) There is no doubt that the appellant was granted leave to effect service by substituted service by Hon. Mokaya, learned Senior Principal Magistrate on 29. 3.2010. There is also no dispute that the appellant effected service by advertisement in the Standard Newspaper. There is further no dispute that judgement in default of appearance was obtained and the matter proceeded for hearing as a formal proof. The respondent took out the motion dated 22. 8.2012 in which he sought for inter alia an order to set aside the exparte judgement. Hon. Lorot heard the motion and allowed the same on 18. 6.2013. I have carefully perused the ruling and it is apparent that at page 11, that the Learned Principal Magistrate allowed the motion on the basis that the order permitting the appellant to serve by substituted service should not have been given. With respect, I agree with the submissions of Miss Kamau that the Learned Principal Magistrate fell into error. He could not have set aside an order issued by a court of concurrent jurisdiction. He could only do so, if there was an application for review which was not the case.
3) In the end and on the basis of this singular ground I allow the appeal. Consequently, the ruling and order issued on 18. 6.2013 is set aside. The motion dated 22. 8.2012 is reinstated to be heard afresh on its merits by another competent magistrate other than Hon. Lorot on priority basis. Costs of this appeal to await the outcome of the motion dated 22. 8.2012.
Dated, Signed and Delivered in open court this 7th day of September, 2016.
J. K. SERGON
JUDGE
In the presence of:
Miss Kamau for the Appellant
Wanjohi for the Respondent